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“From an immigration standpoint, it will remain a deportable offense.”

That’s attorney Janet Moon’s biggest concern for her clients even if New York one day joins the 11 other states in fully legalizing marijuana.

The Syracuse-based lawyer said immigrants who are not citizens – even green card holders – will still be at risk of deportation for using marijuana unless federal laws legalize marijuana or the Immigration and Nationality Act that dictates U.S. policy changes.

A single marijuana conviction for more than 30 grams, or multiple marijuana convictions, is grounds for deportation under the federal INA, regardless of changing state laws, said Moon, who has handled immigration cases in New York for years.

Marijuana violates another federal law, the Controlled Substances Act, which is also a guideline for immigrants. The law deems marijuana a “Schedule I” drug. This means it has a “high potential for abuse.”

Janet Moon, a Syracuse-based immigration lawyer.
Janet Moon, a Syracuse-based immigration lawyer.

“Even now, there’s a strong argument that if someone is convicted for weed under New York law, it shouldn’t form a basis for deportation,” said Matthew Borowski, an immigration attorney based in Buffalo who has worked with immigrants facing deportation because of marijuana charges.

New York is home to 4.4 million immigrants (22% of the state population), according to the Office of the State Comptroller.

Even permanent residents can face legal consequences for possessing marijuana, regardless of whether it’s legal in the state. The federal government has leeway to delay or halt a green card holder’s transition to citizenship if the person is found to have taken part in activities involving cannabis, according to a change last year in the policy manual of the U.S. Citizenship and Immigration Services.

According to that manual, a cannabis-related offense is cause enough to taint the “good moral character” of an immigrant, which is a core judging factor when officials are considering granting citizenship. Cannabis-related activity is among the many convictions that bars a person from having good moral character, according to the policy manual.

Jose Perez, a Central New York immigration attorney, said he thinks racial profiling will be one consequence of this cannabis legalization. He said if New York state legalizes recreational marijuana, there is no reason for law enforcement officers to stop immigrants for marijuana possession. But he believes that because of racial profiling, many officers will still stop them and ask questions, or conduct a background check to see if they are noncitizens.

“But if the police are not asking these questions because the person is using marijuana for recreational purposes under state law, then the person will not go into the system and immigration would not be able to get them,” Perez said.

Perez said even legal U.S. citizens are at risk.

“There’s a lot of racial profiling, a lot of violation of people’s Constitutional rights, a lot of people that take white nationality with pride when doing these types of things, and that’s unfortunate but it’s true,” he said. “And many officers do it.”

In the past seven years, Perez has worked on about 20 marijuana-related cases. Some have involved possession of more than 30 grams, and some have involved less.  He says state law allows an exception for less than 30 grams, so it wouldn’t make sense for police to investigate less than that amount. However, he thinks police will still question people who look like immigrants, and immigration authorities will still place them in removal proceedings. So, decriminalization does not stop non-criminal deportation.

And according to Borowski, non-criminal deportation has been rapidly increasing under the Trump administration.

“Under the Obama administration, non-criminal cases were deprioritized,” he said. The Obama administration prioritized deporting immigrants convicted of serious crimes and threats to national security. The Migration Policy Institute, a nonpartisan think tank, estimated those guidelines affected about 13% of immigrants who did not have legal permission to be in the country.

Perez also said that under the Trump administration, priorities are laser-focused on immigrants. According to the Bipartisan Policy Center, the Trump administration does not distinguish misdemeanors from felonies, so ICE officers are given much more leeway when deciding whom to deport.

Perez said he has worked with clients who had marijuana charges that he knows for sure had exceptions under the state law, such as decriminalization, that would have reduced the consequences, and yet officers are putting them in deportation.

Perez said whether immigrants will be able to use marijuana recreationally in New York will depend on police officers acting in accordance with the state law, without bias. He thinks legalization should stop federal officials from deporting marijuana users. If state law allows marijuana use, a person shouldn’t be detained for marijuana possession in the first place.

“They are detaining them without bond, so they go ahead and sign removal papers without even seeing a judge,” he said. “[Law enforcers] just hope that [noncitizens] don’t get a lawyer so that they can deport them.”

Perez said he doesn’t think federal law will change. Based on his experience, he believes that even if the crime an immigrant is accused of doesn’t taint their good moral character, the government will always make sure that there is a law allowing immigrants to be deported.

Avatar for Kate Brennan

is a Newspaper and Online Journalism major and contributor for The NewsHouse.